For much of the history of the United States, we had few immigration rules. If you managed to book a ticket on a ship headed for the United States, whether it was a first class suite on the RMS Lucania or whether you were stowing away on some cargo ship, if you managed to make a port of entry such as Ellis Island and weren't turned back due to disease or for some political reason, you were in.

In the late 1800s acts such as the Page Act of 1875 and the Chinese Exclusion Act of 1882 restricted immigrants from specific countries, mainly in the Far East, and restricted immigrants based on specific political or socioeconomic factors. The Naturalization Act of 1906 also imposed certain requirements on immigrants such as that they learn the English language, but these did little to change the fundamental fact that as long as you weren't from the Far East, you could immigrate to the United States, with few strings attached.

It wasn't until the Emergency Immigration Act of 1921 that immigration to the United States was universally restricted. That act restricted the number of annual immigrants admitted from any given country to 3% of the number of residents from that same country already living in the United States as of 1910. This meant that people from Northern European countries had a higher quota and were more likely to be admitted to the United States than people from Eastern Europe, Southern Europe or other non-European countries although this did not apply to countries in the Western hemisphere such as Latin America. So the first full immigration restrictions were mainly meant to maintain the cultural and racial make-up of the United States.

It wasn't until the Immigration and Naturalization Act of 1965 that the modern immigration paradigm was established. This law changed the focus of immigration laws from race or national origin to other criteria such as skills, connection to the United States and ability to do work needed in the United States. It did however maintain per country quotas. It was also the first American immigration bill that restricted immigration from other Western hemisphere countries.

More recent immigration acts, especially those in 1996, 2002 and 2005 focused mainly on better enforcement of existing immigration laws.

With this as a backdrop let's turn to President Trump's executive order of January 27, 2017. Whenever we start discussing an executive order, the first thing we must do is look at the authority under which he is acting. Remember, the president cannot create the law. He can only enforce it or carry out power delegated to the executive by Congress.

The authority for this particular executive order appears in Section 212(f) of the Immigration and Naturalization Act, which says: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This, as you can see, is an extremely broad grant of authority to the president, and certainly, at least on its face, covers the executive order in question.

The executive order of January 27th contained the following key provisions. It suspended for 90 days entry of all non-U.S. citizens from seven Muslim majority countries, Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, and did so permanently in the case of Syria.

It also suspended the refugee admissions programs currently in place for 120 days. It also prioritized the allowance of persecuted religious minorities on a case by case basis even from the above-referenced countries. Although unstated, the primary effect of this provision would seem to be to allow persecuted Christians from Muslim majority countries to be excepted from this order.

The State of Washington, later joined by Minnesota, filed a lawsuit in the Federal District Court for the Western District of Washington asking for a temporary restraining order to halt the enforcement of the executive order. This request was granted by Judge James Robart whom the President later famously criticized as a "so-called judge."

The government appealed to the Ninth Circuit Court of Appeals in San Francisco which covers many western states including Washington. The Ninth Circuit issued its decision on February 9th. An initial interesting issue the Court discussed was standing. According to the Constitutional “case or controversy” requirement, someone can only challenge a government action in federal court if the plaintiff can show some sort of actual injury. Just being opposed to the order or being a concerned citizen or group is not enough.

To satisfy the standing requirement, the states alleged that two visiting scholars who had planned to spend time in the state university in Washington were not permitted to enter the United States because of the order. Washington and Minnesota also alleged that the order would stop travel to and from the countries by students and researchers. These things the Court concluded were sufficient injury to allow the states to have standing.

On the substance, the Court first ruled that, contrary to the administration's contention, the executive order was reviewable. Though conceding that the Constitution and federal immigration law gives the President broad discretion in handling immigration, the Supreme Court “has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration,” the Ninth Circuit put it, and cited the 2001 Supreme Court case called Zadvydas v. Davis.

The Court went on to cite many examples wherein federal courts have intervened even in national security cases, ranging in time from World War II through the Second Iraq War.

Having found that the executive order could be reviewed, the Court next conceded that to sustain the restraining order, the states challenging the order must show a strong likelihood that they will succeed on the merits. So even though this was a preliminary case, some discussion of the ultimate merits of the case were necessary.

The Court's ultimate decision turned on two points. The first is due process. Under the Fifth Amendment to the United States Constitution, the government cannot deprive anyone of “life, liberty or property” without due process of law. This has been interpreted to mean that no person can be deprived of a "protected interest” without the opportunity to respond and be heard. It is important to note that the due process clause protects all persons, not just United States citizens.

Now, foreign nationals in general have no inherent legal right to enter the United States. Thus, it was conceded that people outside the United States who have no legal status in the U.S. do not have their rights affected by this particular executive order. Still, the executive order by its terms also applied to lawful permanent residents, sometimes also known as green card holders, who may have had origins in one of these seven countries.

These people certainly do have a protected interest in remaining in the United States and being able to travel abroad and return to their homes in the U.S. The government argued that this point was moot because in the aftermath of the order, the White House counsel issued guidance stating that the order did not apply to lawful permanent residents. However, the Ninth Circuit rejected this argument, saying that the White House counsel doesn't really have the authority to supersede the executive order and that the courts aren't bound by his interpretation nor can he guarantee that the interpretation won't be changed. The face of the executive order deprives green card holders, lawful permanent residents, of due process and thus the states are likely to be able to show that the order is unconstitutional.

The Ninth Circuit also found that the states challenging the order could possibly succeed in getting it reversed on the grounds of the establishment clause in the Constitution. The establishment clause of the First Amendment requires that laws have secular, and not religious, purposes.

While nothing in the executive order states that it is intended to exclude Muslims, the states offered evidence of numerous statements by the President about his intention to implement a Muslim ban. This sort of external evidence is admissible to show an improper motive for a law even if the law itself doesn't say anything discriminatory. Other laws have been struck down even though they were facially neutral when external evidence showed that they were passed or enforced based on discriminatory grounds.

Examples include the famous 1886 case of Yick Wo v. Hopkins where a facially neutral San Francisco laundromat permit requirement was struck down because it was enforcedmainly against people of Chinese descent. Another example was in the more recent case of The Church of the Lukumi Babalu Aye v. City of Hialeah, Florida, a 1993 case wherein the U.S. Supreme Court struck down an ordinance banning animal slaughter for purposes other than food because it was passed with the motive of stopping certain religious animal slaughter rituals.

This compared to our case where the President could be shown to have issued this executive order with the intent to discriminate against Muslims even though the executive order doesn't do so on its face.

So on “due process” and on “establishment of religion” grounds, the states had shown a strong chance to win on the merits. Therefore the Ninth Circuit upheld the temporary restraining order at least temporarily stopping the enforcement of the executive order.

So that brings us to the question: Where do we go from here? As of right now a trial will be held in a few weeks in the same Washington court on the merits of these issues. If the government loses there, it can appeal back to the Ninth Circuit. It if loses there, then it can appeal to the Supreme Court where a lot may depend on whether recent nominee Neil Gorsuch has yet been confirmed by the time this case reaches the United States Supreme Court, if it ever does.

It's also even possible that the government could appeal this ruling of the Ninth Circuit, upholding the temporary restraining order to the Supreme Court. Although it's doubtful that the Supreme Court would want to get involved this early as there hasn't really been a determination on the merits in this case.

It's also possible that the White House will simply rescind the order and issue a new one that changes it just enough to give it a better chance to pass judicial scrutiny. Of course any new such order would also likely be challenged and the process will simply start again. Either way it should be a very interesting next few months from a Constitutional perspective.

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